Re: 60 day thought

[Michael Dillon <michael@memra.com>]

On Sat, 21 Dec 1996, Carl Oppedahl wrote:

> In the area of trademarks, ignorance is indeed no excuse.  A trademark
> owner who fails to "police their mark" will be deemed to have abandoned it.
>  Right now in the US trademark law there is something called an "opposition
> period".  When someone applies for a US trademark registration, there comes
> a time when the pending application is "published for opposition".  During
> that time it's easy for anybody to present their gripe if they have one.
> After that, it is incredibly more difficult to do so, generally requiring
> court or other lawyer-intensive measures.  And indeed someone who snoozes,
> loses.  

This is a good reason why the IAHC should *NOT* have a 60 day waiting
period. Because it looks like the opposition period people will assume
that registering a domain name confers some sort of trademark rights. And
since the Internet is so new we have no way of knowing whether or not the
courts will concur. I think it would be bad for courts to create
precedents which vest the domain name registries with powers of trademark
creation and the 60 day waiting period invites that sort of thing in all
the countries with legal systems based on common law and case law.

> And
> under the IAHC proposal you would no longer be vulnerable to arbitrary and
> capricious cutoffs by NSI, as you are today.

This can be done without a 60 day waiting period. 

If the IAHC drops the 60 day waiting period it will not make any
substantive difference to trademark owners. They can still go to court and
get an injunction or sue the infringer and get a judgement. I don't
believe that an infringer can do any substantial damage to a trademark
simply by registering the name and setting up a website. It takes a lot of
advertising effort and expense to make any brand name visible to the
public and this takes time to prepare and to deploy.

Correct me if I am wrong here, but if there was a blatant case of
infringement and if IAHC's registries published all new domain name
registrations daily, I think a trademark owner could have a court
injunction against an infringer within days.  If this is the case then a
60 day waiting period has little effect at all on the situation. The key
thing needed is a daily gazette that publishes adds, changes and deletes.

Michael Dillon                   -               Internet & ISP Consulting
Memra Software Inc.              -                  Fax: +1-604-546-3049
http://www.memra.com             -               E-mail: michael@memra.com